Let’s take pride in LGBT rights but be aware of forces eager to strip them back

COMMENT

THIS February, the official theme of LGBT History Month in Scotland is Catalyst: 50 years of Activism. Chosen in recognition of those whose bravery and persistence paved the way for progress on LGBT equality, the Catalyst theme marks the 50th anniversary of the Stonewall uprisings in New York, where LGBT patrons of the Stonewall Inn fought back against police raids and set in motion the modern Pride movement in the USA and around the world.

The theme also holds a particular, timely resonance closer to home, as we mark the 20th year of the Scottish Parliament – a moment which shifted the course of Scotland’s history and brought with it transformative advances in LGBT rights.

In times gone by, Scotland was regarded as more socially conservative than England and Wales, partly evidenced by the fact that it took 13 years longer – until 1980 – to decriminalise sex between adult men. In fact, it was a ruling by the European Court of Human Rights which forced the change in Scotland after campaigners from the Scottish Minorities Group mounted a legal challenge.

Fast forward to 2019 and Scotland has been celebrated in the pages of the New York Times for having “the gayest parliament in the world”, with 10 of 129 MSPs known to be lesbian, gay or bisexual. Meanwhile, the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) Europe has ranked Scotland among the top two countries in Europe for LGBTI equality every year since 2015.

This is an achievement sure to be repeated in the coming year, after Scotland made global history in November 2018 by becoming the first country to introduce a legal requirement for all state schools to teach about LGBT identities, history and prejudice.

The efforts of the Time for Inclusive Education (TIE) campaign and other LGBT activists mean that the outlook for today’s LGBT young people is worlds apart from when the doors at Holyrood opened to the new Parliament.

In 1999, it was illegal for schools to “promote” homosexuality or to speak about same sex relationships as an acceptable alternative to heterosexuality, thanks to draconian legislation introduced by Margaret Thatcher in 1987. By 2001, Scotland’s devolved parliament had scrapped the law with 99 votes to 17, despite media controversy and an opposition campaign which spent into the millions.

Since then, Scotland has continued to lead the way on LGBT rights, from equalising the age of consent in 2001, to legalising adoption by same-sex couples in 2007, to finally pardoning men historically convicted of “homosexual offences” in 2018, following a public apology from First Minister Nicola Sturgeon.

At the same time, substantial steps forward have been made in realising the rights of trans people, with the Scottish Government becoming the first in Europe to provide national funding for a transgender rights project in 2007, in the form of the Scottish Trans Alliance.

In 2009, hate crime legislation introduced by Patrick Harvie passed unanimously, including sexual orientation, transgender identity and disability for the first time, making Scotland the first in Europe to recognise transphobic hate crime.

Now, with the proposed reforms to the 2004 Gender Recognition Act, Scotland could become among the first countries in the world to introduce a non-binary gender option on birth certificates, as well as joining a growing number of countries in allowing people to change their birth certificate gender through a process of selfdeclaration.

Each of these steps in the journey towards LGBT equality would not have been possible without the unwavering commitment, and strong partnershipbuilding, of activists and allies – inside and outside of parliament.

But the very existence of the Scottish Parliament, too, has had an important role to play, enabling a closer link between civil society and elected representatives in Scotland, as well as allowing for a more straightforward process for the introduction of Scotland-specific laws.

Reviewing progress in other areas of human rights tells a similar story: since 2017, the Scottish Parliament has passed legislation on equal representation on public boards and created an offence of “coercive control” to allow the prosecution of psychological domestic abuse, while the Scottish Government has launched the First Minister’s National Advisory Council on Women and Girls to tackle gender inequality, and the First Minister’s Advisory Group on Human Rights Leadership.

Each of these developments has been shaped by the evidence and expertise of those who have worked in relevant sectors and fields of study, who have a firm grasp of the issues at hand, and who have been enabled to have a meaningful role in influencing policymaking in a country which, in global terms, represents an uncommonly small unit of democracy.

In other words, far from being “too wee”, Scotland has proven to be just wee enough to allow for an effective and progressive democratic process which, comparatively speaking, works far better for the people it represents.

That being said, there is still progress to be made, and there are still limitations on what the Scottish Parliament can achieve in enhancing and safeguarding equality and human rights, particularly as the bulk of equality law remains reserved. An important example of this is the Equality Act 2010, which protects against discrimination on the basis of various protected characteristics, including sexual orientation and “gender reassignment”. That wording – which was already out of step with the Scottish hate crime legislation of the previous year, which referred instead to “transgender identity” – was criticised at the time and in subsequent consultations for its ambiguous language, which risked an interpretation that only people undergoing medical reassignment would be legally protected.

Meanwhile, recent developments in the face of Brexit have seen the Westminster Government opt to get rid of the European Union’s Charter of Fundamental Rights from UK law as part of the Withdrawal Agreement, despite widespread criticism from human rights activists, charities and political opponents alike.

While substantial human rights protections will remain in the form of other legislation, it is important to remember that membership of the EU has opened the door to legal challenges, forcing progress which would otherwise have been blocked by the UK Government.

As recently as 2017, the Department of Work and Pensions (DWP) was forced to U-turn on allowing employers to refuse to grant equal pension rights to samesex couples, after Supreme Court justices ruled that the position breached EU employment rights.

And despite the issue being put on the backburner amid the Brexit chaos, it is also worth noting that the Conservative Party has been firmly opposed to the Human Rights Act since its inception in 1998, a law which enshrines the European Convention of Human Rights into UK law. Repealing the Act, which was heavily criticised by Theresa May as Home Secretary, was an important part of the Tories’ 2015 manifesto. Vote Leave campaign director Dominic Cummings reiterated last year that there should be a referendum on the question, claiming that Leave voters would be “mad” when they realised the UK was still answerable to the European Court of Human Rights.

So, as we celebrate progress on equality and human rights, we must be mindful that forces remain which would rather see that progress torn down than built upon. Unless full powers over equality and employment law can be transferred to the Scottish Parliament, there will always be times when we remain at the mercy of the UK Government, relying on them to follow the same route. Based on the evidence to date, I would rather not take that risk.

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